Citation Nr: 9831837
Decision Date: 10/27/98 Archive Date: 11/02/98
DOCKET NO. 94-19 539 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Entitlement to service connection for cause of the veteran’s
death on a radiation exposure basis.
(The issue of entitlement to waiver of recovery of an
overpayment of improved death pension benefits in the
calculated amount of $1,584, to include the validity of the
creation of the debt, is the subject of a separate Board
decision.)
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
Michael A. Pappas, Counsel
INTRODUCTION
The veteran, who served on active duty from December 1954 to
June 1974, died in January 1988. The appellant is the widow
of the deceased veteran.
When this matter was last before the Board of Veterans’
Appeals (Board) in October 1996, it was remanded to the
Department of Veterans Affairs (VA), Manila, Philippines,
Regional Office (RO) for additional development. The case
was returned to the Board in July 1998, for further appellate
review.
REMAND
The primary purpose of the Board’s 1996 remand was two-fold.
First, the RO was requested to make additional attempts to
obtain pertinent post-service VA and service facility medical
records, particularly those surrounding the date of the
veteran’s death in January 1988.
The second purpose of the remand was to assure the completion
of specified development procedures required by 38 C.F.R. §
3.311(b) (1998), since as here, it is shown that exposure to
ionizing radiation occurred in service and the veteran’s
death was due to colon cancer. The RO was also to give the
further consideration of the issue in light of the provisions
of 38 U.S.C.A. § 1112(c) (West 1991) and 38 C.F.R. § 3.309(d)
(1998).
The Board recognizes that the RO made a considerable effort
to obtain the veteran’s pertinent medical records. For
example, Wilford Hall Air Force Hospital, the National
Personnel Records Center facility and the Houston, Texas VA
Medical Center (VAMC), were repeatedly contacted and given a
complete description of the records that were needed.
Unfortunately, the efforts of the RO proved fruitless.
In March 1997, the RO directed the veteran’s claims file to
VA Under Secretary for Benefits, in accordance with the
provisions of 38 C.F.R. § 3.311. In August 1997, the
Director of Compensation and Pension Services of the VA
returned the veteran’s claims file to the RO and indicated
that submission of the claim for consideration under 38
C.F.R. § 3.311 was premature. The Director gave the RO
additional instructions with regard to development of the
medical records, and requested that after the “action has
been completed and a response received, whether or not
medical records are available, the claims folder should be
returned to this Service.” Following the RO’s completion of
the requested development, that did not occur, and the claims
file was instead directed to the Board for further appellate
review. The Board finds that in order to ensure compliance
with the directives set forth in 38 C.F.R. § 3.311, the case
must be remanded so that the RO may submit the claim to the
VA Under Secretary for Benefits for consideration prior to
the Board’s appellate review.
Further, the Board’s 1996 remand directed that if action
remained adverse to the appellant, the RO was to have
provided her and her representative with a supplemental
statement of the case as to the issue of service connection
for the cause of the veteran’s death. No such supplemental
statement of the case was issued. The Board is restrained by
Court precedent from proceeding without the RO having
followed the Board’s own directives. 38 C.F.R. § 19.31
(1998); Stegall v. West, 11 Vet. App. 268 (1998).
Finally, in a statement submitted to the Board in August
1998, the appellant’s representative pointed out a potential
source of development of the appellant’s claim.
Specifically, the representative noted that in the letter to
the RO from the VAMC, it was suggested that if the RO needed
further assistance, the Chief of the Health Information
Management Section be contacted. In light of the fact that
the case must be remanded for the procedural development
noted above, the Board believes that it would be prudent, and
could assist the appellant in the development of her claim to
make another effort to obtain potentially relevant medical
records in the manner noted by the appellant’s
representative.
Accordingly, the case is REMANDED to the RO for the following
action:
1. As was suggested in the April 1998
letter from the Acting Chief of the
Houston, Texas VA Medical Center (VAMC),
the RO should contact the Chief of the
Health Information Management Section and
ask for further assistance in obtaining
the veteran’s medical treatment records
of his hospitalization at the VAMC from
December 15, 1987, until the date he
expired, January 6, 1988. Any records
obtained should be associated with the
claims file.
2. Thereafter, the RO should, in
accordance with 38 C.F.R. §
3.311(b)(1)(iii), digest and forward
appropriate information to the VA Under
Secretary for Benefits, in accordance
with the provisions of 38 C.F.R. §
3.311(e) (the dose information should be
from the June 27, 1995 letter from the
Department of the Navy), for an opinion,
in accordance with 38 C.F.R. § 3.311(c),
as to whether it is at least as likely as
not the veteran's in-service radiation
exposure caused his fatal colon cancer,
and thereafter take further rating action
in light of such Under Secretary's
response. The RO should also thereafter
consider the appellant's claim once again
in light of the provisions of 38 C.F.R. §
3.311, and in light of the provisions of
38 U.S.C.A. § 1112(c) and 38 C.F.R. §
3.309(d).
3. Thereafter, if action remains adverse
to the appellant, the RO should provide
her and her representative with a
supplemental statement of the case that
complies with 38 U.S.C.A. § 7105(b) (West
1991) -- that is, one which contains a
summary of the evidence in the case
pertinent to the issue, cites pertinent
laws and regulations and indicates how
they affect the RO's decision, and
contains a summary of the reasons for
such decision. The appellant and her
representative should be given the
requisite period of time to respond.
Thereafter, if any action remains adverse to the appellant,
the case should be returned to this Board in accordance with
the usual appellate procedures. No action is required of the
appellant until she is further informed. The purpose of this
REMAND is to assist the appellant and to provide her with due
process of law. No inference is to be drawn regarding the
final disposition of the claim.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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